posted by Thom Holwerda on Tue 18th Dec 2012 14:31 UTC
IconLots of news about Apple vs. Samsung (and vice versa) in both the US and Europe today. In the US, judge Koh dealth two blows: one to Samsung (no retrial based on juror misconduct), the other to Apple (no permanent sales ban). In Europe, in the meantime, Samsung announced it will cease all lawsuits injunction requests against Apple... But only in Europe.


A blow to Samsung...

The blow to Samsung was expected, and looking at Koh's motivation, hard to argue against. As most of you will remember, Samsung aimed for a retrial based on juror misconduct. The company claimed Velvin Hogan, the jury foreman, hid information during the discovery process. Koh pretty much said that it's Samsung's lawyers' own fault for not asking the right questions during the discovery process.

"Samsung cannot use post-verdict statements unrelated to any potential bias to restart the clock on its obligation to investigate," Koh argues, "What changed between Samsung's initial decision not to pursue questioning or investigation of Mr. Hogan, and Samsung's later decision to investigate was simple: the jury found against Samsung, and made a very large damages award. This is precisely the situation that courts have consistently found constitutes a waiver of the juror misconduct claim."

In addition, Samsung also argued that the interviews Hogan gave after the trial constituted evidence that he had unfairly swayed the jury by introducing "incorrect and erroneous legal standards" into the process. This, too, was thrown out by Koh; she argues that nothing Hogan said during post-trial interviews constitutes as "incorrect and erroneous legal standards".

The likelihood of success here was always small, so it's no surprise Koh denied the motion for a retrial. Still, I remain that Hogan's post-trial interviews paint the picture of a man out to award as many damages as possible, and that he was hell-bent on bringing in a guilty verdict. However, gut feeling and pictures painted are not reasons to restart a trial - especially not one as ridiculous as this one.


...and a blow to Apple...

Moving on, it's not a good day for Apple either. Cupertino had to suffer a pretty big setback: Koh refused to grant injunctions on the 20 devices found to infringe on Apple's patents. Of these 20 devices, only 3 are still being sold today, and injunctions on devices no longer sold is pointless.

More importantly, though, Apple has failed to convince the judge that it has suffered irreparable harm from Samsung's infringement - a crucial requirement for granting an injunction. Koh argued that the software patents in question - tap-to-zoom, pinch-to-zoom, and rubberband scrolling - were not crucial features of the Samsung devices in question, and that they did not drive sales of the devices.

To establish irreparable harm, Apple must show that "the infringing feature drives consumer demand for the accused product." Apple did not establish at the preliminary injunction stage that the '381 patent was central enough to Samsung's products to drive sales, and has not established that fact here either. Nor has Apple established that either the '915 or the '163 patents actually drive sales of any Samsung products. Neither statements about broad categories, nor evidence of copying, nor the conjoint survey provides sufficiently strong evidence of causation. Without a causal nexus, this Court cannot conclude that the irreparable harm supports entry of an injunction.

In normal people speak: Apple's software patents are insignificant and they are not worth a sales ban. Of all the legal talk in these two US court orders today, this is probably the most uplifting message for those of us who hate software patents with a passion.

Apple also argued that it should get a permanent sales ban based on dilution of its trade dress. Here, too, Koh disagrees with Apple, and for a very simple reason: of the Samsung products found by the jury to dilute Apple's trade dress, none are still on the market. This means there's no harm being done to Apple, and as such, a sales ban would serve no purpose.

Apple will appeal this decision, so this case will be dragging on for a while.


...while Samsung backs off in Europe

To round off this stint of legal news, Samsung has just announced it will cease all lawsuits injunction requests against Apple currently underway in Europe. This means that Samsung will drop all cases injunction requests in Germany, the UK, France, Italy, and The Netherlands - a massive boon for the legal system and consumers alike, since this frees up a lot of resources better spent on, you know, stuff that isn't totally pointless wrapped in fifty shades of irrelevance. Like phones without TouchWiz.

"Samsung remains committed to licensing our technologies on fair, reasonable and non-discriminatory terms, and we strongly believe it is better when companies compete fairly in the marketplace, rather than in court," Samsung's PR blurb goes, "In this spirit, Samsung has decided to withdraw our injunction requests against Apple on the basis of our standard essential patents pending in European courts, in the interest of protecting consumer choice."

The real reason, of course, is that Samsung's European cases against Apple weren't going all too well anyway - worse even than Apple's European cases against Samsung - so there's nothing to be gained from continuing them. Wrap it all up in some nice consumer choice spin nonsense, and there you go, instant karma.

It'll be interesting to see what Apple's move in Europe is going to be like. Will the company feel pressured to abandon its patent abuse, or will it continue, public opinion be damned? I'm seriously hoping for the former, but the latter is probably more likely.

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